There’s nothing funny about threatening to take people’s health care away, least of all in the midst of a deadly pandemic. Such a simple notion of morality is lost, however, on Justin Walker, the 37-year-old Mitch McConnell protégé that Trump has tapped for a lifetime appointment on the U.S. Court of Appeals for the D.C. Circuit, the second most powerful court in the country.
Walker has long been a fierce opponent of the Affordable Care Act. He called the Supreme Court’s ruling upholding the law “indefensible” and “catastrophic,” instead praising his old boss Brett Kavanaugh for having written the “roadmap” to overturn it. Even as a sitting district court judge, Walker also expressed his opposition to the landmark legislation, a law that could conceivably come before his courtroom.
At his investiture in March, as much of the country was already beginning to engage in social distancing, Walker bemoaned that the Court upheld the ACA, which Chief Justice Roberts based on his conclusion that the individual mandate was a constitutional tax. Praising another of his former bosses, Justice Anthony Kennedy, Walker quipped, “The greatest words you can hear from Justice Kennedy are, ‘You’re hired,’ and the worst words are, ‘The Chief Justice thinks this might be a tax.’” The line elicited extended laughter from the audience, which included both Kavanaugh and McConnell — laughter that clearly conveyed their shared contempt that the ACA is still on the books.
At last week’s Senate Judiciary Committee hearing, senators highlighted the threat Walker’s confirmation would pose to the health and well-being of their constituents. Senator Feinstein asked: “Why in the middle of a pandemic should we support a nominee who would take away health care for millions of Americans, including those with pre-existing conditions?” Senator Leahy said, “You have not hidden your contempt for the Affordable Care Act . . . It is no secret how you would rule on the ACA.” Senator Durbin noted that Walker has “not been the least bit impartial when it comes to the Affordable Care Act” and that his “contempt” for the law was “obvious.” Senator Coons emphasized, “I’m left questioning why any litigant would trust you to be open-minded and fair in deciding a case about the ACA given your previous advocacy.”
Walker tried to assuage senators’ just and grave concerns that, given the opportunity, he would take away health care from millions. He dismissed his prior writings as merely the musings of an academic. Straining credibility, he tried to suggest that he was not, in fact, weighing in on the constitutionality of the law when, as a sitting judge, he made an obvious jab against it at his investiture. Assuring the senators that he’d still follow the precedent set in NFIB v. Sebelius, Walker claimed he simply “wanted to pay tribute to Justice Kennedy” and did so by making a “light-hearted allusion” to his dissent in the ACA case. It was a “tongue-in-check way,” he said, of referencing how Kennedy was not part of the majority in that ruling.
This explanation is alarming for numerous reasons. President Trump strongly supports a lawsuit to declare the entire ACA unconstitutional, and he has explicitly stated that his judicial nominees would invalidate the law. Walker has been clear that, if given the chance, he would in fact do so, and his effort at his hearing to minimize that commitment is belied by his own repeated statements. If the ACA were overturned, 20 million people would lose their health care. Protections for the 135 million people with preexisting conditions would disappear — to say nothing of the millions more for whom testing positive for COVID-19 will now count as a preexisting condition as well. Walker’s willingness to ignore the impact the law has had on people’s lives is nothing short of shocking.
If Walker truly wanted to joke about his experiences working with Justice Kennedy, he could have likely chosen from any number of humorous anecdotes from their time working together. Instead, he specifically chose to make light of that one time Kennedy was ready to take health care away from millions but ended up in the minority. How callous Walker must be if he’s so oblivious to the way that ruling could have devastated lives across the country had it gone the other way. There’s nothing light-hearted about it.
What standard can Senate Republicans claim they’re even holding judges to? Walker has repeatedly and unequivocally advocated for the courts to overturn the ACA. Even as a sitting judge, he didn’t bother to pretend that he was impartial on the matter. And when called out for openly admitting just how dangerously conservative his views on health care still are, he tried to cast it off as a joke. Walker offers no allusions — “humorous” or otherwise — that he has any intention of being a fair-minded jurist.
Any Senate Republican who votes for him is confirming they care more about the courts doing their partisan dirty work than any notion of actually vetting nominees. There’s no argument that can counter the reality that the ACA improved the welfare of our population by helping millions more people access the health care we all deserve. Walker, Trump, McConnell, and the Republican Party have all made explicitly clear they want to undo that progress. We should take them at their word.
